Assessment of Liability for Injury in a Car Accident

This assignment involves analyzing a car accident scenario where Anita suffers injuries due to Benjamin's reckless driving while under the influence of alcohol. The application of the neighbour test and relevant sections of the Civil Liability Act 2003 are explored to establish liability. A defence claim by Benjamin is also considered, highlighting contributory negligence on Anita's part. This assignment demonstrates a comprehensive understanding of civil liability and contributory negligence in a real-world scenario.

Business law

Table of Contents
ISSUE..............................................................................................................................................1
RULES.............................................................................................................................................1
APPLICATION...............................................................................................................................4
CONCLUSION................................................................................................................................5
REFERENCES................................................................................................................................6

ISSUE
How Anita can establish an action of negligence against Benjamin?
What defense action can Benjamin take in his protection?
RULES
Tortious liability:
The tort liability imposed on a person or an organisation protect the fundamental liberties
including personal liberty, fundamental rights and protection from the interference from other
people and entities (Gibson 2018). Under the tort law the right of a person are protected from the
wrongful conduct of others and give the claimant a right to sue fro compensation for the injuries
and harm sustained.
Civil liability act 2002:
Part 1A:
Section 9 (2) Duty of standard care:
For establishing the duty of care over a person the court will see that a reasonable person
would have taken precautions against the risk of harm when:
 there was probability that if care was not taken, a harm can occur,
 the likeliness of the harm,
 burden to avoid the ham by taking precaution
 The risk of harm through the creation of social utility of the activity.
Under the tort law, a duty of care is a legal obligation which is imposed on an individual
requiring adherence to a standard of reasonable care while performing any acts that could
foreseeably harm others (CIVIL LIABILITY ACT 2003 - SECT 9, 2018). It is the first element that
must be established to proceed with an action in negligence.
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Case law: Dononghue v Stevenson, 1932
In this case for the first time the law of negligence was established along with the
neighbour test. The rule of loving your neighbour become the law (Donoghue v
Stevenson [1932] AC 562. 2018). The neighbour is stated a person is who is closely and directly
affected by the act of person under the breach. The test determines two factors that is reasonable
foresight of harm and a relation of proximity.
Test to establish negligence:
1. Did the defendant owed a duty of care,
2. Is there a breach of duty by the defendant,
3. does injuries are suffered by the plaintiff,
4. does the injury caused due to the breach of duty of care,
To establish a negligence all the above factors must be satisfied. Even a single factors do
not satisfy the establishment of negligence on the defendant.
Section 11:Causation
For establishment of the breach of duty of care is essential to prove that the injury was
caused not only caused due to negligence but also there is a connection between the act and the
negligence.
The harm caused is due to the fault of a person which compromises the duty of care, is
determined through following elements:
a) that breach of the duty was an essential condition for the harm to occur, (factual causation)
b) it is appropriate to extent the liability of the harm to the person under the breach of care
(Scope of liability).
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In determining the factual causation it is seen that what the person who suffered damaged
would have done if the person under the breach had not been in the fault then case is deciding
with the circumstances and on the basis of statement made by the person who have suffered
harm.
The scope of liability is determined by the court with taking consideration from all
relevancy circumstances whether or not the responsibility of the breach of duty of care be
imposed on the parson committing it.
Contributory negligence and standard of care:
Section 23: is applicable in deciding the establishment of the breach of duty by a person
over another individual who has suffered harm or injury is guilty of contributory negligence in
failing to take precaution against the risk of that harm (CIVIL LIABILITY ACT 2003 - SECT 23,
2018). The person who have suffered harm must have standard of care from other and it is
decided on basis that person suffering harm have known the reasonableness of the ham at that
time.
Section 24: This section defines the reduction in the damage claims over the defendant
by the reason of contributory negligence. The court may decide upon a reduction of 100% in the
claim amount when court is of the view that it is just and equitable to do so and the damage
claim is defeated.
Case law:Topp v London Country Bus [1993]
In this case it was held that a person can not be stated under negligence for the act of their
party (Topp v London Country Bus [1993] 1 WLR 976, 2018). The foreseeability of a harm can
be set on a person due to the action of another person.
Remoteness of Damage:
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The defendant is only liable to for damages for the harm which was foreseeable.
APPLICATION
The application of the above rules and cased laws for the given case scenario goes like
first establishing the neighbouring test, that both Benjamin and Anita shares a proximity relation
as both are soon to husband and wife. Moreover, Benjamin was drunk and it is mentioned that
over the drink and drive limit so the cause of action was foreseeable as the likeliness of
happening of an accident. As per section 9 of the act he owed a care of duty and he clearly
breached it as there were high changes that he can meet with accident, still he drove the car.
Moreover, as per section 11 of the act the causation of breach of duty was there this can be
established as, Benjamin was drunk and they met with accident due to which Anita suffered
serious injury. There was direct link to the actions which lead plaintiff to suffer the damages. For
this case Anita need to establish a care of duty through neighbouring test and decided case of
Dononghue v Stevenson, 1932, after this there was a breach of duty as the act was foreseeable as
Benjamin was under the influence of alcohol when driving. Due to the accident she suffered
major injuries and liable to get damage claims in form of her medical bills and mental and
physical pain suffered by her.
In his defence Benjamin can take as action as per section 23 and 24 of the act. This
means Benjamin owed a care of duty towards Antia and he breached the same. But Anita knew
that he was under the influence of Alchol and had drinks which was above the limit of driving,
still she let him drive. She was completly aware of the circumstances so she is labile of
contributory negligences. Here the court can grant a 100% relief to Benjamin from the damage
claims made by Anita.
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CONCLUSION
For the above case it can be concluded that Antita can make the damage climes as getting
compensation from Benjamin with application of the neighbouring test and section of the civil
liability act, 2002. Moreover, Benjamin can also make a defence claims by establishing the
contributory negligence on the part of Anita.
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REFERENCES
Books and Journal
Gibson. A., 2018. Business law, 10th edition, perason. PP. (99-107).
Online
CIVIL LIABILITY ACT 2003 - SECT 23. 2018. [Online]. Available through
:<http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/cla2003161/
s23.html>.
CIVIL LIABILITY ACT 2003 - SECT 9. 2018. [Online]. Available through
:<http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/cla2003161/
s9.html>.
Donoghue v Stevenson [1932] AC 562. 2018. [Online]. Available through :<http://www.e-
lawresources.co.uk/Donoghue-v-Stevenson.php>.
Topp v London Country Bus [1993] 1 WLR 976 . 2018. [Online]. Available through :<http://e-
lawresources.co.uk/Topp-v-London-Country-Bus.php>.
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